Amendment 25

Northern Ireland (Executive Formation) Bill - Committee (Continued) – in the House of Lords at 11:00 pm on 15th July 2019.

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Lord Black of Brentwood:

Moved by Lord Black of Brentwood

25: After Clause 9, insert the following new Clause—“Extension of the Defamation Act 2013(1) The Secretary of State must make regulations to change the law relating to defamation in Northern Ireland to provide that the Defamation Act 2013 is extended to Northern Ireland.(2) Regulations under this section must be in force no later than 21 October 2019, subject to subsections (3) and (4).(3) A statutory instrument containing regulations under subsection (1)—(a) must be laid before both Houses of Parliament;(b) is subject to annulment in pursuance of a resolution of either House of Parliament.(4) If a Northern Ireland Executive is formed before the regulations under this section come into force, any regulations made under this section and any extant obligations arising under subsection (1) shall cease to have effect.”

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

My Lords, this amendment is also supported by the noble Lords, Lord Kennedy of Southwark and Lord McNally. I declare an interest as deputy chairman of Telegraph Media Group and draw attention to my other media interests in the register.

I will make two general points at the start of this short debate. First, I am a passionate unionist and a supporter of devolution, and I sincerely hope that, by 21 October, the talks process at Stormont will have succeeded and the measures that we are discussing in this amendment will once again be where they belong—in the hands of the people of Northern Ireland.

I would just like to add that I read the debates on this Bill in the other place and listened to the debate here in this House this afternoon and I want to underline that I understand the passions which the issues of equal marriage and abortion—which we have heard so much about in the last couple of hours—give rise to in the Province. I respect that, but this amendment should be an uncontroversial one on free speech and freedom of expression, which do not produce such emotions and concerns. Indeed, on all the evidence I have seen, there is a real appetite in Northern Ireland for change in this area and frustration that, after six years of waiting, we are no nearer to achieving that. I am very grateful for the comments earlier of my noble friend Lord Duncan and his commitment to report in this area and to meet with the noble Lord, Lord Empey, and I. I will certainly take him up on that, but I would like to explain in these few remarks why I do not believe that this goes far enough.

The amendment seeks simply to extend the terms of the Defamation Act 2013 to Northern Ireland, as was always intended by the architects of that legislation. This House needs no reminding of the importance of that Act, in which so many noble Lords played such a vital part. It was one of the most significant and important pieces of legislation to come out of the coalition Government, and it happened after a huge amount of consultation and scrutiny. The Act was three years in the making. It started life here as a Private Member’s Bill brought forward by the noble Lord, Lord Lester, and it was followed by a long consultation, pre-legislative scrutiny by a Joint Committee of both Houses, a draft Bill and consideration in the other place before it finally arrived here.

It was not a long Bill and its purpose was very straightforward. Its aim was to replace our out-of-date, costly and overcomplicated defamation laws which damaged freedom of speech and academic and scientific debate, stifled investigative journalism, and yet failed to afford proper protection to those who were defamed. In their place came a new law for a modern age which provided effective protection for freedom of speech, both online and offline, by discouraging trivial and unfounded actions; clarified and simplified defences for those accused of libel; addressed the scandalous issue of libel tourism; and ensured proper remedies for those who had been genuinely wronged. It has achieved those aims in England and Wales, to the great credit of those who drafted it and guided it into law.

The key point is that it was always intended that this law should apply to Northern Ireland as well as to England and Wales. Scotland, of course, has always had its own separate law of defamation, although it is not one which has ever been significantly out of step with the rest of the country. Any outstanding anomalies will, I hope, be addressed through the new Defamation and Malicious Publications (Scotland) Bill currently under consultation. But the law of defamation in Northern Ireland has never been detached from that of England and Wales, which is why, when the law was last reformed in the 1950s, Stormont and Westminster moved in step. All that changed after 2013 in a way which has severed the Province from the rest of the country in an important area of law when a legislative consent Motion was not taken forward at the time by the Executive. It is still not clear, even after six years, why such an unjustifiable decision was taken at the time to cut Northern Ireland adrift. There was certainly no consultation about it or consideration of the implications. No transparent procedures were applied.

We may never know quite why the decision was taken, but we do know that ever since then efforts have been made to rectify the position with proper consultation. A detailed report and analysis by Dr Andrew Scott of the LSE, undertaken for the former Finance Minister Máirtín Ó Muilleoir, coupled with a consultation paper from the Northern Ireland Law Commission, scrutiny by the Assembly’s Finance Committee and consideration of a Private Member’s Bill on the subject, have all ensured that this short piece of uncontroversial legislation has been comprehensively crawled over in the Province and provided a very extensive evidence base for reform of the law there. Civil society has played its part, too, with a grass-roots campaign supported by more than 10,000 people, including, before her death, the murdered journalist Lyra McKee, and that continues to lobby for change.

That case for change is overwhelming. It is clear that the legislation has worked in England and Wales. It is clear that there is strong demand for its implementation from the people of Northern Ireland, including, crucially, the academic and scientific community. And the legislation, except perhaps for a few claimant lawyers determined to protect Belfast’s unenviable position as the new libel capital of Europe, is not controversial. Therefore , it seems to me that the key issue for us is: why the urgency? Why do we need to use this Bill to extend the Defamation Act to Northern Ireland rather than just waiting for when the Assembly and the Executive are back up and running again, as we all want, and why is the commitment that my noble friend made earlier to report back not enough? Those are very good questions that deserve answers, because they go to the nub of the amendment.

I believe that there are four compelling reasons. The first is one of principle. This is a question of fundamental human rights. The existing libel laws in Northern Ireland, condemned by the UN Human Rights Committee and many other international organisations because of their impact on free speech, deny to many, particularly academics, scientists and journalists, the right to free expression. Article 10 of ECHR, which is enshrined in UK law, protects the right to,

“receive and impart information and ideas without interference by public authority and regardless of frontiers”.

That includes the public authorities of Northern Ireland and the frontier across the Irish Sea. This denial of one of the most basic human rights has gone on for too long and cannot be allowed to go on any longer if we have an opportunity such as this to rectify matters. Rights delayed are rights denied, and the people of Northern Ireland deserve better, so that is urgent.

The second relates to Northern Ireland’s local media, which has such a vital role to play in the proper functioning of democracy in the Province. As many noble Lords will be aware, local publishers are now in a very difficult commercial position across the UK and certainly in Northern Ireland, and they can no longer afford to bear the costs of such an oppressive and expensive libel regime. It is investigative journalism, so crucial in this part of the country, which suffers. Alistair Bushe, editor of the News Letter, wrote to me to say:

“The need for libel reform in Northern Ireland is now more urgent than it has ever been. For more than five years there has been a discrepancy between the legal position in the Province where claimants are not required to show that they have suffered serious harm and the rest of the UK where they are. During that time the financial pressures facing small media outlets across Britain and Ireland have increased making them particularly vulnerable to bullying or vexatious litigants”.

Gail Walker, editor of the Belfast Telegraph, echoed that by writing that,

“an extension of the Act to Northern Ireland is long overdue”.

Noble Lords should remember that under the oppressive system that exists in Northern Ireland, one defamation action that goes wrong could be enough to put a local newspaper out of business.

Statistics from the Northern Ireland Law Commission consultation paper, which show that there are six times as many claims for defamation per capita in Northern Ireland as in England and Wales, underline the point. Of the 30 defamation claims progressed to the High Court in Belfast in the past three years, fewer than five ended with a determination for either party—which shows how vital it is to introduce the serious harm requirements and prevent vexatious complaints. So, as editors testify and the statistics show, the case is urgent.

The third reason relates to the nature of Northern Ireland’s democracy and its governance. As the noble Lord, Lord Murphy, said earlier, Northern Ireland needs more democracy, but to flourish democracy needs a pluralistic, lively and investigative press, vigorous scrutiny of public bodies, open discussion, robust academic debate, energetic citizen journalists and a free and unfettered flow of information, yet the libel regime in Northern Ireland discourages all of that. Do not take my word for it. Here is Lyra McKee, so tragically murdered earlier this year, who had this to say at the launch of the Northern Ireland Libel Reform Campaign in 2014:

“My line of work means I often upset people in power. I often find myself threated with our archaic libel laws. I’ve become involved with the Libel Reform Campaign because a muzzled press equals a poor democracy—and that is what we have. My hope is that we bring Northern Ireland into alignment with the rest of the UK by reforming our archaic libel laws, meaning they can no longer be abused by politicians with things to hide ... For corrupt politicians they have become a means of silencing the press. Northern Ireland can never be a properly functioning democracy”.

That heartfelt plea is an urgent one.

My final point relates to the issue of scientific and academic debate. When we have debated the issue in the past, the noble Lord, Lord Bew—who is in his place and has kindly told me that he supports this amendment—has warned in a number of powerful speeches that failure to reform Northern Ireland’s libel laws would have a profoundly chilling impact on such debate, and so it is proving. At the time of the Defamation Act, a survey of doctors found that half of all GPs felt that the old libel laws restricted the open discussion of the potential risks of drug treatment. Dr Peter Wilmshurst, an NHS cardiologist, told the Assembly that he had spent four years fighting a US corporation that sued him for questioning the safety of a heart valve. The Defamation Act has removed the chilling effect in England and Wales. It should remove it for doctors in Northern Ireland too. Failure to act raises pressing issues of health and safety, making this urgent.

Those are four very real reasons why we should not gamble on the success of the talks and wait until the Assembly and Executive are functioning again—which we all wish to see but none of us can predict. It may take weeks, months or years. However, the problems arising from the failure to reform the libel laws are here right now. They are damaging free speech in the Province, undermining investigative journalism, stifling scientific debate and, above all, disadvantaging the people of Northern Ireland. It has been six years. We cannot and must not wait any longer. It is time to act. I beg to move.

Photo of Lord Stoneham of Droxford Lord Stoneham of Droxford Liberal Democrat Lords Chief Whip, Deputy Speaker (Lords) 11:15 pm, 15th July 2019

I will speak very briefly. I think that that is the most comprehensive case that could have been made in support of the amendment. There is very little left to be said. The noble Lord, Lord McNally, was going to speak from these Benches and wanted me to say on our behalf that we fully support this. It is long overdue and was a very important piece of reform in the coalition Government. We cannot really understand why there has been a delay in implementing it. Clearly, this is an opportunity to do it. We fully support it.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I strongly support this amendment, which brings back to your Lordships’ House an issue of the first importance. Shortly after the passage of the Defamation Act 2013, I instigated a debate in Grand Committee about the overwhelming case for extending it to Ulster. I later brought forward probing amendments to a Northern Ireland Bill.

The Government at that time agreed that Northern Ireland ought to enjoy the benefits of the 2013 Act and deprecated the Province’s exclusion. It meant that, for the first time in our history, it would have a different libel law from England and Wales. Acute dissatisfaction was expressed across the House that the Northern Ireland Executive—which was then in being—failed to provide any explanation of their opposition to the incorporation of the 2013 Act in Northern Ireland. The Government pressed for an explanation but received none.

When I withdrew my probing amendment in 2014, I asked the Government what further action they would take if the Northern Ireland Executive failed to pursue this matter properly. Sadly, Ministers have been unable to give me any clear reply to that question since then. The issue seems to have slipped from the Northern Ireland Office’s sight. I am glad that it has again been given the prominence it deserves through this amendment.

Photo of Lord Empey Lord Empey UUP

My Lords, the Minister kindly accepted the amendment I proposed on this matter earlier. I fully accept that we were not co-ordinating on it. I support the proposal by the noble Lord, Lord Black. He knows that and we have talked about this before—he has been to Belfast. He has explained exactly what is at stake, in a very coherent contribution. It is a mystery why this progress has been so slow, but that is where we are. I find myself in total agreement with his contribution.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

My Lords, I have very few remarks to make in response to my noble friend, but I thank him for his long speech. There is no doubt that defamation law in Northern Ireland does not reflect today’s digital age. To echo my noble friend’s words, reform is indeed needed. The issues at stake here hit the very heart of the relationship between citizens, media and the state. It is important to deliver protections in the field of freedom of expression.

My noble friend would like to see progress made to update the Northern Ireland law and I understand that position. There are certainly parts of the Defamation Act 2013 that could usefully be extended to Northern Ireland. However, this Act removed the presumption of trial by jury for libel actions. This may of course shorten and reduce the cost of libel actions.

It is of note that the 2017 Review of Civil and Family Justice in Northern Ireland by Lord Justice Gillen noted the extremely important function of the jury in defamation cases in the context of the Northern Ireland jurisdiction, in particular its role in finding whether the plaintiff has been defamed. As the Gillen review notes, juries in Northern Ireland have been traditionally considered the best fact-finder to judge what words or statements mean in the local context with its unique history, and whether they are considered defamatory in any case. These are matters that involve justice and freedoms, and on which the particular jurisdiction is important. The devolved nature of defamation law in Scotland is reflected in the fact that only a very limited number of provisions in the Defamation Act 2013 have been extended to Scotland, in particular around statements or reports which arise in the scientific or academic field.

Similarly, defamation law is a devolved matter for Northern Ireland; therefore, simply extending the Defamation Act 2013 to Northern Ireland is not appropriate. Further, I understand that, prior to the passage of the Defamation Act, the views of the Northern Ireland Executive were sought as to whether they wished to make a legislative consent Motion to provide for the Act to apply in Northern Ireland, but they declined to do so. Decisions to reform the law should be taken by a restored Northern Ireland Executive. This will allow the unique Northern Ireland context to be taken into account in any reforms. I regret that I am not able to help my noble friend but I respectfully request that he withdraw this amendment.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

My Lords, I am grateful to the noble Lords who supported this amendment. As the remarks from my noble friend Lord Lexden made clear, this is an issue on which we have been pressing for many years now. I remember well his debate in Grand Committee four years ago, yet no progress has been made. I am grateful to my noble friend the Minister for his comments. Yes, indeed, a legislative consent Motion was declined at the time but no real reason was given for that and none has been given since, which I do not think is satisfactory when we are talking about an area of law of such importance as libel and involving such fundamental human rights as those of freedom of expression. This is an area to which I fear we will have to return. I will take up my noble friend Lord Duncan’s offer to meet to talk about how we might make progress in this area. In the meantime, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.